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Frequent Slashdot contributor Bennett Haselton takes a look back at the recent Boston case where police seized a student's laptop but had to give it back.
"The EFF was right to argue that police had no right to seize the laptop of a Boston College student who was accused of forging an e-mail from his roommate. But according to the judge's reasoning, the police probably could have gotten away with it, if they had appeared to care more about pursuing the student for downloading pirated movies instead." Click the link for Bennett's analysis.

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On May 21, Justice Margot Botsford of the Supreme Judicial Court of Massachusetts ordered police to return computer equipment that they had seized from Boston College student Riccardo Calixte in March. Police had obtained a warrant and seized the computer equipment on the basis of three alleged acts committed by Calixte: (a) forging an e-mail to a Boston College mailing list purporting to be from his roommate, Jesse Bennefield, claiming to "come out" as gay and announcing his membership on a gay dating site; (b) illegally downloading movies to his computer; and (c) hacking into the school's grading system to change grades for students. Justice Botsford ruled that on the one hand, even if Calixte had sent the forged e-mail, that did not constitute a crime, and on the other hand, the documentation supporting the search warrant had made only cursory references to the downloaded movies and the grade-hacking, not enough to support the standard of evidence required for a warrant.

The EFF was right to argue on Calixte's behalf that forging an e-mail to a mailing list does not constitute "obtaining computer services by fraud or misrepresentation" and hence does not violate Massachusetts's computer crime statutes. Unfortunately for future defendants in the same situation, the judge's ruling suggests that the court might have upheld the warrant even if the police had only pretended to care more about the alleged crimes committed by Calixte -- the hacking into the school's grading system, and the downloading of movies -- and less about the sending of the forged e-mail, which the courts found not to be a crime.

A portion of the judge's decision reads:

He [Jesse Bennefield, Calixte's former roommate and the "informant" whose tip led to the issuance of the search warrant] stated, among other things, that "he has observed Mr. Calixte hack into the BC grading system that is used by professors to change grades for students"; he also told [police detective] Christopher that "Mr. Calixte has a cache of approximately 200+ illegally downloaded movies as well as music from the internet."

The affidavit does not reveal any investigatory steps taken as a result of this January 28, 2009, conversation between Bennefield and Christopher. Rather, the bulk of the affidavit is devoted to a discussion of two email messages, apparently sent from the Google and Yahoo email services...

And later:

Moreover, although Bennefield reported this allegedly criminal conduct in late January, Detective Christopher did not seek a search warrant until March 30, 2009, two months later, and the affidavit does not reveal any effort to verify or follow up on any of the complaints, even by asking Bennefield for further details. By contrast, the claim that Calixte sent false emails is supported by two pages of detailed information, listing the steps taken to determine who sent the emails, the time they were sent, and the evidence suggesting that they were sent from Calixte's computer.

In sum, the principal focus of the affidavit was on the emails. Faced with the reality that the alleged email activity was probably not illegal, the Commonwealth now seeks to justify the search warrant, post hoc, based on an affidavit that fails to indicate either the time or the place of the criminal activity its informant claims to have witnessed, and that reflects no effort or attempt to verify the sketchy information supplied...

In other words: Even if the police didn't really care about the pirated movies and the grade-hacking, it might have helped to make the warrant stick if they had made more of a passing reference to those issues in the motion for a warrant, at least according to the reasoning expressed by the judge.

Compared to the analysis that the police conducted in order to determine whether Calixte sent the e-mails (such as looking up the records to see if the IP address was registered to his user account at the time), there's probably not much that the police could have done to determine if Calixte had downloaded any movies illegally, short of seizing his computer. Even if the campus had a log of all remote sites that Calixte had connected to, there would be no way to determine what he might have downloaded over a peer-to-peer protocol that encrypts downloaded data, as most peer-to-peer programs do.

But ironically, the fact that there is so little the police could have done to follow up on that investigation, would have made it even easier for them to create the appearance that they cared about the downloaded movies, even if they didn't! All they would have to do is say, in fancier language: "We asked the campus network if they could tell us what Calixte downloaded from various IP addresses, and they couldn't tell us anything. We asked them if they had any way of knowing what files might reside currently on Calixte's laptop, and they couldn't tell us anything." Basically: "We tried. We hit a wall right away. But we tried, and that proves we care." The warrant application as it was written, might as well have said that with regard to the issue of the downloaded movies: "We didn't try at all."

From the informant's side, the judge said that there was not enough evidence to support the issuance of a warrant because Bennefield's affidavit fails

"to state Bennefield's basis of knowledge that Calixte has in fact downloaded files to his computer, or that they are 'illegal.' Contrast Commonwealth v. Beliard, 443 Mass. 79 85 (2004) (named informant's basis of knowledge established by firsthand observation, furnished with detail and specificity)."

OK, so if you're a potential "informant" planning on ratting out your roommate, and you think that your roommate has downloaded some movies illegally, just ask him point-blank if you can see a couple of seconds of his clip of Wolverine, or some other movie in current release of which the 3,000 screens it is legally playing on does not include your roommate's laptop. Then you can "furnish with detail and specificity" the accusations that you want to make later.

So maybe the police have learned their lesson and they'll know how to get around this roadblock next time. I still wouldn't call that a tragedy for civil liberties, at least with regards to the acts alleged in this case. The EFF wisely took no position on whether Calixte actually did commit any of the acts that he was accused of, only that the police had no right to seize his equipment. But if the police can ever prove that someone hacked into their school's grading system, that person should be punished; that's not a civil liberties issue. Even downloading movies, which we tend to think of as a more victimless crime, means that for every dollar saved by someone watching a movie for free in their dorm room, the shortfall has to be made up by paying ticket buyers.

And if Calixte actually did send the forged e-mail pretending to be from Jesse Bennefield, then while the courts were correct to rule that that was not a crime, Bennefield could probably sue him in civil court, especially now that the police have done all the heavy lifting of uncovering the evidence. According to the warrant affidavit, the message to the Boston College mailing lists was sent from an IP address that had been registered to a computer with the same network name as Calixte's laptop. The e-mail also included a screen shot of a fake profile for Bennefield on the www.adam4adam.com site, and the network logs showed that an IP address registered to Calixte was the only IP address in that dorm to visit the gay dating site www.adam4adam.com in the five days prior to the e-mail being sent. Everyone is innocent until proven guilty, but if you had to bet everything you owned on a "Yes" or "No" answer to the question of whether Calixte sent the e-mail, which would you pick?

The EFF was right to go to court for the narrowly prescribed legal principles that (a) forging an e-mail to a mailing list does not constitute "obtaining computer services by fraud or misrepresentation" or "unauthorized access to a computer system," and that (b) vague accounts of illegally downloaded movies or rumors of hacking into a school grading system, are insufficient for the issuance of a search warrant. But that doesn't mean that the police can't overcome those obstacles next time, and it doesn't mean we should hold up Riccardo Calixte as some kind of cyber-liberties hero.

Al Capone, is that you?
How is that posting flamebait? I think the logic is sound.
If you are going to break an inane or unenforceable law, Don't break other laws that draw attention to yourself or give the authorities an easier way to get you convicted. The only way I can see that post as flamebait is if the moderator got caught drunk driving AND the post was directed at him personally. Or maybe you just have something against slashdot's newest member, Anonymous Cowardon?

Officer to the driver: Sir, you were the millionth car who crossed this bridge. Here is your prize of $10000. What are you going to do with that money?
Driver: I will finally buy the driving license.
Wife: Do not listen to him, he is just drunk.
Mother in law: Didn't I tell you that you would not get far on the stolen car?
A voice from the trunk: Did we cross the border yet?

The first think I would do in this guy's situation is to sue the city under the premise that since the search warrant was illegal, all activities flowing from the warrant were performed outside of the city's normal police powers. Since the activities were carried out without any authorized police powers, they were also carried out without the normal protections granted police during the lawful execution of their duties.

The Police and Government don't have to play by those rules. They are only for you.That is why we have a Secretary of the Treasury that is a Tax cheat. That is why police can do no knock searches on the wrong location without going to jail for breaking and entering. The qualified immunity of police has become an unqualified immunity in practice.

Not me... "tough on crime" has become a redflag in my book. Very few can manage to be "tough on crime" without also backing at least some policies that trample our Constitutional Rights.

On the flipside of the Aisle, the politicos who scream the loudest about justice for all are usually the ones most willing to pass nanny laws and yet more entitlements, which infringe our rights as much or more, just in different ways.

I'm pretty sure illegally seized evidence can be used in civil cases. I'm pretty sure civil cases have a much higher "conviction rate" than criminal cases precisely because, in general, there is a much lower standard to meet. This applies to the final finding as well as how to determine if some issue or item is admissible as evidence. That's why you see things like OJ Simpson getting acquitted of murder but losing millions of dollars in the civil suit.

Right, I agree with what you are saying, but at the same time, if i remember correctly, there was quite a bit of testimony and physical evidence that was allowed in the civil suite that was barred from the criminal case. All that evidence probably had a role to play in the different verdict as well.

This is going to vary from country to country and their standards for evidence.

Fairly sure in the US if it was found illegally it falls under "Fruit of the poisonous tree" laws and can't be used, civil or criminal. There are some grey areas for licensed PIs where they seem to be able to do things cops can't but I am not sure on the details of that one. It would be the equivalent of breaking into someone's house and finding a stolen painting vs police knocking on the door and seeing it hanging there from the

I don't think it works that way. Just because a warrant was later found to be invalid does not necessarily mean the police were acting illegally. I think the judge would say that as long as the police were acting "in good faith" or whatever, then they can't be touched. Unless of course they did something totally heinous or overreaching, in which case the warrant issue would have nothing to do with it. Also, I think I should point out that in general, the legality of the police actions and the admissibil

The problem I see with your argument is that at some point in time the police did have a valid warrant, signed by a judge, which directed their course of action. Based on this legal document, the police then acted accordingly, and LEGALLY. If the warrant was later found to be invalid for any reason, then all evidence stemming from the warrant is thrown out. That is how it generally works now. Just because the warrant was later found to be invalid, you can't take the police officer's legal actions and r

I agree that is a problem, but that signals to me that the system needs to be fixed, not overhauled. I'm not really sure what the situation is to the problem we are discussing, but I'm also fairly certain that the solution you suggest would be just as inappropriate.

There's a thing called "acting in good faith" in cases like that. The police believe they have the right to do something, based on the information they have. If someone else then proves that information to be incorrect, the police shouldn't be the ones personally punished. Unless of course they're the ones that lied to get the warrant.

And yes, I agree, it'd be nice if judges got arrested for issuing invalid warrants, when it's blatant abuse of power. They do eventually face reviews that will dump them off t

Did you not read the next sentence? I acknowledge judicial immunity, and said it was a problem. It needs to be abolished. We need to have accountability for these people when they overstep their authority. Criminals are criminals, whether they wear gang colors, business suits, uniforms, or robes.

Unfortunately the best he can do is make all the evidence inadmissible in court.

The police had a warrant, which at least in the US means signed by a judge. That is all the police need to be protected. The fact it was found to be faulty later means nothing they found can be used, and they have to give it back and say their sorry, but at the time of the activity it was perfectly legal. No recourse available.

The judge who signed it has been embarrassed, and the police annoyed, that is as much vindication as he

That's the trick, though... if the Warrant is valid and the police officer executing it has reason to believe in good faith that the warrant is valid, then he can execute it and proceed. The fact that the warrant is declared invalid later doesn't mean that the officer wasn't acting in good faith. If the officer knew the warrant to be BS, and executed it anyway, then it's his ass - but that's another story.

As long as the Bill of Rights is still in effect, they can't compel the passphrase, and even if it's crackable by No Such Agency, they would never confirm they had the capability by wasting it on such a meaningless charge.

A properly encrypted laptop is just a really cool-looking battery-operated space heater.

Its not uncommon by any stretch to have something seized or impounded, only to find that the responsible organization can no longer find it. You can threaten them with legal action, but then you have to prove the following:

A: That you owned said item.B: That you had said item with you at the time of seizure.C: That said item was seized.D: That said item wasn't returned.

Its pretty fucking hard to prove all of those things. You better have receipts/statements showing you had

Just because one pathetic excuse doesn't work, try another to do an unlawful seizure. Its like saying "I *think* you might possibly have stolen goods in your house, so I'm going to take couch to make sure it isn't stolen." yeah, that doesn't go over well.

I mean 10s or 100s of millions of people pooling there money together for a single cause could financially trump any corporation.

Of course they could, and do (sometimes). I think the the problem is that there's hundreds and thousands of monied interests flooding legislators and executives with lobbyists, and in most cases there's just not enough "public outrage bandwidth" to support the effort required to push back any significant fraction of them.

I mean, how many unrelated grass-roots efforts can the average Joe support before he's out of time and/or money? Most of us are too busy earning a living to do very much.

Because the laws are written by the Corporations (through the politicians they own) for the Corporations. I suspect that much of the time so-called Western Democracies (and as a Canadian I include Canada in this) are nothing more than Corporatocracies (to coin a word since I can't think of a better one) with the *facade* of elections and political parties. From what I can see, its a rare day the Government doesn't bend over backwards to help large corporations and ignore the citizens.

Why the heck does the law make an imessuarably small dent in a megacorporations profits more important than fraud being perpetrated against a citizen? its ridiculous and very wrong.

If everyone is to be treated as equal before the law, then fraud is fraud, no matter the perpetrator, no matter the victim, no matter the amount of harm done. That's not bias at all; in fact, it's the opposite.

Here's a great warrant-free recipe for convictions:
1) Seize computers from random people on flimsy grounds that you know will be thrown out.
2) ???? (Go fishing through their hard drives for evidence of actual crimes.)
3) Prosecute!

Except that is almost exactly what the judge in this case suggested the police should have done. The only difference, as far as I can tell, is the police already had a pretty good idea what "actual crime" they would try to find evidence for.

Ok I agree there. But change the argument just a little. Instead of getting the warrant for something that will get thrown out, get the warrant for some victimless, harmless crime, that has minimal penalties. Then use the warrant to "stumble upon" incriminating evidence for harsher crimes. Now will it work?

I wonder what evidence they could have found about hacking into the school's computers to change grades. Would he be stupid enough to keep a log of all IP numbers he connected to so there would be a nice trail to follow right to the school's sever? If someone hacked a server, wouldn't you need to look at that server to find evidence that there was a connection with a particular person/IP number?

It seems ridiculous to the point of absurdity that they even put that in the warrant in the first place.

I wonder what evidence they could have found about hacking into the school's computers to change grades. Would he be stupid enough to keep a log of all IP numbers he connected to so there would be a nice trail to follow right to the school's sever? If someone hacked a server, wouldn't you need to look at that server to find evidence that there was a connection with a particular person/IP number?
It seems ridiculous to the point of absurdity that they even put that in the warrant in the first place.

You make it sound as if address tracking was the only possible evidence that could be found that would prove this type of hacking. What if the school's grade changing program had a simple web based interface, and that website was conveniently bookmarked in this guy's browser. And then let's say the police found some type of program that was commonly used to crack various passwords? Maybe this guy was stupid enough to have a long string of various emails saved from the past few months that discuss his gra

It is also probably worth mentioning that this might simply be a case of Sore Butt Syndrome.

The roommate obviously had plenty of motive to implicate and/or frame his roommate, because his roommate had framed him as having come out as a homosexual. Not to mention, he had plenty of time to access his roommate's computer to, perhaps, hack the school grade system and download illegal material. Or, he might not have bothered, just tormenting the guy with a false arrest was enough to make

Police seized a laptop on the wrong statute, and didn't actually do any investigative work on things for which the state allows someone to seize a laptop. Yes we can have a discussion about whether it's appropriate to be able to seize a laptop for copyright accusations, but this looks like a scare analysis rather than anything actually insightful.

I don't think the above excerpts are a fair presentation of the judge's ruling. Read the whole thing over at EFF and it makes much more sense.

The ruling spends a lot of time taking the police to task for getting a warrant using probable cause based on previous alleged crimes. The judge explains that those things don't constitute probable cause in this case. I don't think the judge is saying anything about the worthiness of a warrant based on copyright infringement. Rather, if you want to use copyright infri

In other words: Even if the police didn't really care about the pirated movies and the grade-hacking, it might have helped to make the warrant stick if they had made more of a passing reference to those issues in the motion for a warrant, at least according to the reasoning expressed by the judge.

I don't get it. Police use their resources at their discretion. I had a friend getting a massive speeding ticket once and in the middle of filling out the ticket, the cop's radio went apeshit. Someone had been shot nearby in DC so the cop just said, "This is your lucky day" and left. Why? Because he had better shit to do! Three times in one month my car was broken into and nothing was stolen but considerable damage was done to my vehicle. I asked cops if there was an option to dust for fingerprints... what do you think their answer was? I was at a party in college where a bunch of people were smoking five bowls of weed when cops knocked on the door. They were there to tell us to turn the music down. They smelled/saw weed. They told everyone to shut up or go home and that's what we did. Why didn't they book everyone in the room for possession? Probably because they had more important shit to do that night.

Point being, if you're complaining about your neighbor or roommate engaging in an illegal activity, stick to investigating what the source of the complaint is. His roommate wasn't upset about illegal file sharing, that was just to spite the guy. The cops requested a warrant correctly addressing the only problem anyone was having--the fact that Calixte may have been impersonating someone. Maybe changing grades bothered his roommate, I don't know.

Let me ask you this, if your neighbor had a problem with your pool parties getting too loud and he called the police and said "Oh yeah, and he also speeds when he drives in our neighborhood and I saw him with fireworks when they're illegal in our state and sometimes he has a bonfire without the notified officials being there and and and and and..." What would you do in a situation like that if you were the responding officer? Calm the guy down, verify if there is an issue, resolve the issue and tell the guy he needs proof if he wants to make it stick.

Now what if police implemented a template warrant for computers that had "illegal games, illegal music, illegal movies, etc" on it so that just in case they wanted icing on the cake for whatever they were going after you for, it was there? You know, just list common things. You need to know exactly what you're getting a warrant for otherwise it's an abuse just like the government wiretappings now.

Your editorial seems to consist more so of "if you really want to screw someone in a case like this, make sure you verify all this extra illegal stuff he's doing."... or have I missed something?

"Three times in one month my car was broken into and nothing was stolen but considerable damage was done to my vehicle. I asked cops if there was an option to dust for fingerprints... what do you think their answer was? "

Once, my car's transmission went out. Acura had to order a replacement, but it would have been more expensive to install a new one from the factory, so they offered a rebuilt transmission, one from Japan. It would take a while, so my car was down, in the lot maybe 2 weeks or a

Three times in one month my car was broken into and nothing was stolen but considerable damage was done to my vehicle. I asked cops if there was an option to dust for fingerprints... what do you think their answer was?

That they've got four more detectives working on the case and they're working in shifts? Did the thieves at least leave your Credence?

Even downloading movies, which we tend to think of as a more victimless crime, means that for every dollar saved by someone watching a movie for free in their dorm room, the shortfall has to be made up by paying ticket buyers.

I find this statement to be utterly false. The movie industry releases hundreds of movies per year; some of the movies do hundreds of millions of dollars in business, some do at most a few million dollars, or even less. So how do you define "shortfall" as used above? The movie industry (and apparently the contributor) apparently assume that anyone who downloads a movie illegally would have been willing to pay $10 to see it legally, if downloading it were not an option. If you downloaded 200 movies over a month's time (or even a few months time), that's $2,000 worth of movie tickets... How many people are really willing to spend that much on movie tickets, in a month or even a few months? How many college students watching illegally downloaded movies in their dorm room have $2,000 a month/semester/whatever to spend on movie tickets? Or for that matter, time to watch them? The idea that every illegally downloaded movie represents a shortfall to the movie industry is absolutely absurd.

The movie industry (and apparently the contributor) apparently assume that anyone who downloads a movie illegally would have been willing to pay $10 to see it legally, if downloading it were not an option.

And most slashdotters assume anyone who downloads a movie illegally wouldn't have paid for the ticket if it had not been available, so no loss.

I got a $50 itunes gift card for Christmas. I have $49 left on it in June. Why? Because there hasn't been a single album that has come out that I didn't want to own the whole thing (and thus bought the CD), and there's not been a good movie out of the theater released onto DVD this year.

What the hell out there is worth stealing, when I can't even find something worth getting legally?

And to be fully fair, some downloaded movies result in the same person seeing the movie in the theater ("It was so good I had to see it on a big screen.") or buying the DVD ("I never would have paid to see that based on the previews, but after downloading it I fell in love and bought the DVD for the extras.").

No, neither of those are tremendously likely, but just like some downloaded movies cost revenue and some downloaded movies have no effect on revenue, some downloaded movies add revenue.

And on the other hand, some downloaded movies immediately equate to increased revenue by providing publicity and making people want to watch in the theaters; compare the studies that have found that P2P music downloaders buy more CDs and official music downloads.

Seems to me that the best we can do is to say that we don't know but that it's probably about a wash.

Assuming all movies are 100 minutes long, and you sleep 8 hours a night, then 200 movies means you're spending about 70% of your awake time, or over 11 hours a day, watching movies.

But yes, I agree with your basic point; many of the people who pirate the movie and watch it are likely to simply not watch the movie if the option of piracy is removed. Claiming people that don't watch the movie represent some kind of loss is a little strange.

I stopped reading at that point, as it the entire suggestion that paying ticket holders get charged more is absolutely ludicrous.

Assume that the estimate of 1 million downloads of "Wolverine" are accurate. Now, I saw it in the theatre. The ticket price was exactly the same as all of the other movies opening this summer. There was no "piracy surcharge" or anything else like that, so the suggestion that theatre goers make up some sort of "shortfall" is provably false.

Why? Should be a similar story, at least, shouldn't it? The value of the software is in what it does for me. If my business saves 2 minutes a week because of your software, then based on the salary of the employee whose time is being saved, we'd end up with a licencing fee of about $17/year based on an hourly wage of $10. That's the value I've assigned your software. What value it has to you could be very different. Your software doesn't have an intrinsic value either.

Looks to me as a private war between roommates, which went out of control and then to the police. Interesting that the police cared enough to seize one computer, but probably just to calm down this war a bit. Why should they actually care too much about the other stuff? And what interest may the police have to keep the laptop for a longer time?

"And what interest may the police have to keep the laptop for a longer time?"

They haven't finished watching the movies/porn yet? "Awwww, Your Honor, can't we keep this computer for just another week? I forgot how good "Debby does Dallas" was, and with my schedule, I won't be able to watch it til the weekend!"

Why is it that no one is paying attention to the fact that he was breaking into the school computer system and changing grades? Should that not have been the police's main concern? Isn't that a significantly bigger crime than the others? Shouldn't the school have been interested in this?
"Hello Police, I saw this guy loitering in front of the supermarket. Oh, and he was also killing dozens of people with a machine gun."
"Thank you sir, we'll get right on that loitering thing."

Why is it that no one is paying attention to the fact that he was breaking into the school computer system and changing grades? Should that not have been the police's main concern? Isn't that a significantly bigger crime than the others? Shouldn't the school have been interested in this? "Hello Police, I saw this guy loitering in front of the supermarket. Oh, and he was also killing dozens of people with a machine gun." "Thank you sir, we'll get right on that loitering thing."

You didn't actually read this properly weeks ago when it came up the first time. His roommate told the police "I saw him doing this stuff". That was it. No details whatsoever. He didn't even tell them _where_ he allegedly saw him breaking the the school computer. And now comes the judge with a sharp mind and says: Wait a second, you haven't even got an idea where this happened? So you haven't got any idea whether he used a computer in one of the school labs, or his own laptop? Well, in that case, you can't

I thought that the idea of a search warrant is that the police submit evidence of a crime to a judge, and while the evidence doesn't have to be enough to convict it does have to meet a certain level of credibility.

This means, that to get a warrant to search a laptop based on copied movies, I'd think there'd have to be at least a little evidence of a crime, which would presumably be felony infringement (which is significantly more than having one un

IAAL but not a specialist in search-and-seizure. Nonetheless I think your post asks the right questions and makes the right points. The Constitution guarantees Americans freedom from unreasonable searches and seizures. Encyclopedias-full of cases have refined and honed this principle. We are similarly guaranteed freedom from the taking of our effects and papers except upon the issuance of a warrant based on probable cause. Probable cause also has an encyclopedia of cases saying what is and what isn't.

'You can't be rousted on the malicious and phony say-so of a neighbor, nor on the say-so of an informant who knows and dislikes you, without additional advance evidence. A warrant must state with specificity what is sought and what the basis for suspecting its presence. Police CANNOT, even with a warrant, conduct a "fishing expedition" to find evidence of some other crime....'

Which is very interesting in light of the fact that this is exactly how Animal Control now operates in most locales -- in fact in Los

So the testimony of somebody who is already extremely pissed off at you for "outing" him online should be believed with regard to other "crimes" committed with your computer? Seems to me his roommate had every reason to lie.